KENYA Country Profile

Judicial System

Individual Corruption

According to the Transparency International Global Corruption Barometer 2009, the judicial system is perceived to be one of the most corrupt institutions in Kenya, ranked second only to public officials in the survey. According to the Transparency International Kenya's East African Bribery Index 2009, the likelihood of encountering bribery in the judiciary has slightly decreased compared to the 2008 index. Legal fees are high compared to the median income and many Kenyans opt for extra-judicial settlements. Court processes are long and bureaucratic.

Business Corruption

According to the World Bank & IFC Enterprise Surveys 2007, the vast majority of companies do not show much faith in the legal system. Legal fees are high, and although small and medium-sized companies may be able to initiate a case, sustaining a case is difficult and many parties will opt to settle outside court, as court processes are long and highly bureaucratic. Courts are understaffed and underfinanced; hence they suffer from a lack of capacity. The solicitation and acceptance of bribes by court officials in order to provide a favourable verdict is not uncommon. As noted by the Bertelsmann Foundation 2008, the saying among businesspeople in Nairobi that 'it is not necessary to pay an attorney when you can buy a judge for less', is telling.

Political Corruption

The judiciary is not mentioned in the constitution, and its independence is curbed by the executive. Political interference in judicial appointment and rulings has been common in the past, and the appointment process is still non-transparent. The US Department of State 2008 reports that the government sometimes makes use of the legal system to harass critics.

President Kibaki has criticised the extent of corruption in the judiciary and has ordered the Minister of Justice to establish a process to identify corrupt judges. In 2003, several judicial officers, senior magistrates and judges were suspended and accused of abuse of office. The decision to suspend them won immediate public approval. However, the subsequent appointment process raised concerns about the selection criteria and the lack of transparency. There is no process for vetting judges, and they are appointed by the President in practice.

All provinces have an Anti-Corruption Court set up by the Chief Justice to deal with and expedite cases of corruption and fraud within the normal legal framework, which includes the Anti-Corruption and Economic Crimes Act 2003. However, claims have been made that the establishment of and recruitment to the courts was unauthorised and thus unconstitutional.

Frequency

The World Bank & IFC: Doing Business 2010:
- It takes 40 procedures over an average of 465 days at a cost of 47% of the claim to enforce a commercial contract in Kenya.

World Economic Forum: The Global Competitiveness Report 2009-2010:
- Business executives give the Kenyan judiciary's level of independence from influences of government, citizens and companies a score of 2.7 on a 7-point scale (1 being 'heavily influenced' and 7 'entirely independent').

- Business executives give the efficiency of the legal framework for private companies to settle disputes and to challenge the legality of government actions and/or regulations a score of 2.9 and 2.6 respectively on a 7-point scale (1 being 'extremely inefficient' and 7 'highly efficient').

Transparency International Kenya: The East Africa Bribery Index 2009:
- With a score of 66.5%, the judiciary is ranked the third most corrupt institution in Kenya by respondents in this citizen survey.

- The likelihood of encountering bribery in interactions with the judiciary is reported to be 86.1%.

- 57.8% of the respondents report to have paid a bribe in their interaction with the police.

- 17.3% of respondents interacting with the judiciary report that the consequence of refusing to bribe was a denial of service.

- The average size of bribe paid to the judiciary is KES 5,627.

Transparency International: Global Corruption Barometer 2009:
- Citizens give the judiciary a score of 4 on a 5-point scale (1 being 'not at all corrupt' and 5 'extremely corrupt').

- 42% of households surveyed consider the judiciary to be 'extremely corrupt'.

- 35% of households who had contact with the judiciary in 2008 report to have paid a bribe.

Afrobarometer: Summary of Results Kenya 2008:
- 20% of the household respondents report to not trust the courts of law.

- 35% of the household respondents believe that most or all of the judges and magistrates are involved in corruption.

The World Bank & IFC: Enterprise Surveys 2007:
- A little more than 22% of companies polled believe the court system is fair, impartial and uncorrupted.

- 13% of companies identify the functioning of the courts as a major business constraint.